Convention on the Transfer of Sentenced Persons

Explanatory Report

1. The Convention of the Transfer of
Sentenced Persons, drawn up within the Council of Europe by a committee of
governmental experts under the authority of the European Committee on Crime
Problems (CDPC), was opened for signature on 21 March 1983.

2. The text of the explanatory report
prepared on the basis of that committees discussions and submitted to the
Committee of Ministers of the Council of Europe does not constitute an
instrument providing an authoritative interpretation of the text of the
Convention although it may facilitate the understanding of the
Conventions provisions.

Introduction

1. At their 11th Conference (Copenhagen,
21 and 22 June 1978), the European Ministers of Justice discussed the problems
posed by prisoners of foreign nationality, including the question of providing
procedures for their transfer so that they may serve their sentence in their
home country. The discussion resulted in the adoption of Resolution No. 1, by
which the Committee of Ministers of the Council of Europe is invited to ask the
European Committee on Crime Problems (CDPC), inter
alia, "to consider the possibility of drawing up a model agreement
providing for a simple procedure for the transfer of prisoners which could be
used between member States or by member States in their relations with
non-member States".

2. Following this initiative, the creation
of a Select Committee of Experts on Foreign Nationals in Prison was proposed by
the CDPC at its 28th Plenary Session in March 1979 and authorised by the
Committee of Ministers at the 306th meeting of their Deputies in June 1979.

3. The committees principal tasks
were to study the problems relating to the treatment of foreigners in prison and
to consider the possibility of drawing up a model agreement providing for a
simple procedure for the transfer of foreign prisoners. With regard to the
latter aspect, the CDPC (at its 29th Plenary Session in March 1980) authorised
the Select Committee, at its own request, to prepare a multilateral convention
rather than a model agreement, provided it would not conflict with the
provisions of existing European conventions.

4. The Select Committee was composed
of experts from fifteen Council of Europe member States (Austria, Belgium,
Denmark, France, Federal Republic of Germany, Greece, Italy, Luxembourg,
Netherlands, Portugal, Spain, Sweden, Switzerland, Turkey, United Kingdom).
Canada and the United States of America as well as the Commonwealth Secretariat
and the International Penal and Penitentiary Foundation were represented by observers. Mr. J. J. Tulkens (the
Netherlands) was elected Chairman of the Select Committee. The secretariat was
provided by the Directorate of Legal Affairs of the Council of Europe.

5. The draft for a Convention on the
Transfer of Sentenced Persons was prepared during the Select Committees
first five meetings, held from 3 to 5 October 1979, 4 to 6 March 1980, 7 to 10
October 1980,1 to 4 June 1981 and 1 to 4 December 1981 (enlarged meeting to
which experts from all member States were invited). In addition, a drafting
group met from 7 to 9 October 1980 (during the Select Committees 3rd
meeting) and from 24 to 26 November 1980.

6. The draft convention was finalised by
the CDPC at its 31st Plenary Session in May 1982 and forwarded to the Committee
of Ministers.

7. At the 350th meeting of their Deputies
in September 1982, the Committee of Ministers approved the text of the
convention. At their 354th meeting in December 1982, the
MinistersDeputies decided to open it for signature on 21 March
1983.

General considerations

8. The purpose of the Convention is to
facilitate the transfer of foreign prisoners to their home countries by
providing a procedure which is simple as well as expeditious. In that respect it
is intended to complement the European Convention on the International Validity
of Criminal Judgments of 28 May 1970 which, although allowing for the transfer
of prisoners, presents two major shortcomings: it has, so far, been ratified by
only a small number of member States, and the procedure it provides is not
conducive to being applied in such a way as to ensure the rapid transfer of
foreign prisoners.

With a view to overcoming the
last-mentioned difficulty, due to the inevitable administrative complexities of
an instrument as comprehensive and detailed as the European Convention on the
International Validity of Criminal Judgments, the Convention on the Transfer of
Sentenced Persons seeks to provide a simple, speedy and flexible mechanism for
the repatriation of prisoners.

9. In facilitating the transfer of foreign
prisoners, the convention takes account of modern trends in crime and penal
policy. In Europe, improved means of transport and communication have led to a
greater mobility of persons and, in consequence, to increased
internationalisation of crime. As penal policy has come to lay greater emphasis
upon the social rehabilitation of offenders, it may be of paramount
importance that the sanction imposed on the
offender is enforced in his home country rather than in the State where the
offence was committed and the judgment rendered. This policy is also rooted in
humanitarian considerations: difficulties in communication by reason of language
barriers, alienation from local culture and customs, and the absence of contacts
with relatives may have detrimental effects on the foreign prisoner. The
repatriation of sentenced persons may therefore be in the best interests of the
prisoners as well as of the governments concerned.

10. The convention distinguishes itself
from the European Convention on the International Validity of Criminal Judgments
in four respects:

 With a view to facilitating the rapid transfer of
foreign prisoners, it provides for a simplified procedure which, in its
practical application, is likely to be less cumbersome than that laid down
in the European Convention on the International Validity of Criminal
Judgments.

 A transfer may be requested not only by the State in
which the sentence was imposed ("sentencing State"), but also by
the State of which the sentenced person is a national ("administering
State"), thus enabling the latter to seek the repatriation of its own
nationals.

 The transfer is subject to the sentenced persons
consent.

 The Convention confines itself to providing the
procedural framework for transfers. It does not contain an obligation on
Contracting States to comply with a request for transfer; for that reason,
it was not necessary to list any grounds for refusal, nor to require the
requested State to give reasons for its refusal to agree to a requested
transfer.

11. Unlike the other conventions on
international co-operation in criminal matters prepared within the framework of
the Council of Europe, the Convention on the Transfer of Sentenced Persons does
not carry the word "European" in its title. This reflects the
draftsmens opinion that the instrument should be open also to like-minded
democratic States outside Europe. Two such States  Canada and the United
States of America  were, in fact, represented on the Select Committee by
observers and actively associated with the elaboration of the text.

Commentaries on the articles of the Convention

Article 1  Definitions

12. Article 1 defines four terms
which are basic to the transfer mechanism which the Convention provides.

13. The definition of "sentence" a makes clear that the Convention applies only to a
punishment or measure which involves deprivation of liberty, and only to the
extent that it does so, regardless of whether the person concerned is already
serving his sentence or not.

14. It follows from the definition of
"judgment" b that the Convention applies
only to sentences imposed by a court of law.

15. The two States involved in the
transfer of a sentenced person are defined as "sentencing State" and
"administering State" c and d.

Article 2  General principles

16. Paragraph 1 contains the general
principle which governs the application of the Convention. Its wording is
inspired by Article 1.1 of the European Convention on Mutual Assistance in
Criminal Matters. The reference to "the widest measure of co-operation in
respect of the transfer of sentenced persons" is intended to emphasise the
conventions underlying philosophy: that it is desirable to enforce
sentences in the home country of the person concerned.

17. Paragraph 2 refers the sentencing
State to the possibility, afforded by the Convention, of having the sentenced
person transferred to another Contracting State for the purpose of enforcing the
sentence. That other State, that is the "administering State", is
 by virtue of Article 3.1.a  the
State of which the sentenced person is a national.

Although the sentenced person may not
formally apply for his transfer (see paragraph 3), he may express his interest
in being transferred under the Convention, and he may do so by addressing
himself to either the sentencing State or the administering State.

18. According to paragraph 3, transfers
may be requested by either the sentencing State or the administering State. This
provision signifies an important departure from the rule of the European
Convention on the International Validity of Criminal Judgments that only the
sentencing State is entitled to make the request. It acknowledges the interest
which the prisoners home country may have in his repatriation for reasons
of cultural, religious, family and other social ties.

Article 3  Conditions for transfer

19. The first paragraph of Article 3
enumerates six conditions which must be fulfilled if a transfer is to be
effected under the terms of the Convention.

20. The first condition a is that the
person to be transferred is a national of the administering State. In an effort
to render the application of the convention as easy as possible, the reference
to the sentenced persons nationality was preferred to including in the
convention other notions which, in their practical application, might give rise
to problems of interpretation as, for instance, the terms "ordinarily
resident in the other State" and "the State of origin" used in
Article 5 of the European Convention on the International Validity of
Criminal Judgments.

It is not necessary for the person
concerned to be a national of only the administering State. Contracting States
may decide to apply the convention, when appropriate, in cases of double or
multiple nationality even when the other nationality (or one of the other
nationalities) is that of the sentencing State. It is to be noted, however, that
even where all the conditions for transfer are satisfied, the requested State
remains free to agree or not to agree to a requested transfer. A sentencing
State is therefore free to refuse a requested transfer if it concerns one of its
own nationals.

Paragraph 1.a
is to be read in conjunction with paragraph 4 which grants Contracting States
the possibility to define, by means of a declaration, the term
"national".

This possibility, corresponding with that
provided in Article 6.1.b of the European
Convention on Extradition, is to be interpreted in a wide sense: the provision
is intended to enable Contracting States to extend the application of the
convention to persons other than "nationals" within the strict meaning
of their nationality legislation as, for instance, stateless persons or citizens
of other States who have established roots in the country through permanent
residence.

21. The second condition b is that the judgment must be final and enforceable, for instance
because all available remedies have been exhausted, or because the time-limit
for lodging a remedy has expired without the parties having availed themselves
of it. This does not preclude the possibility of a later review of the judgment
in the light of fresh evidence, as provided for under Article 13.

22. The third condition c concerns the length of the sentence still to be served. For the
convention to be applicable, the sentence must be of a duration of at least six
months at the time of receipt of the request for transfer, or be indeterminate.

Two considerations have led to the
inclusion of this condition: the first is that the convention is conceived as an
instrument to further the offenders social rehabilitation, an objective
which can usefully be pursued only where the length of the sentence still to be
served is sufficiently long. The second reason is that of the systems
cost-effectiveness; the transfer of a prisoner is costly, and the considerable
expenses incurred by the States concerned must therefore be proportionate to the
purpose to be achieved, which excludes recourse to a transfer where the person
concerned has only a short sentence to serve.

In exceptional cases, however, Contracting
States may  in application of paragraph 2  agree to a transfer
even though the time to be served is less than that specified, as the general
rule, in paragraph 1.c. The introduction of this
element of flexibility was deemed useful to cover cases where the aforementioned
two considerations do not fully apply, for instance where the prospects of
rehabilitation are favourable despite a sentence of less than six months or
where the transfer can be effected expeditiously and at low cost, for example
between neighbouring States.

23. The fourth condition d is that the transfer must be consented to by the person concerned.
This requirement which is not contained in the European Convention on the
International Validity of Criminal Judgments constitutes one of the basic
elements of the transfer mechanism set up by the convention. It is rooted in the
conventions primary purpose to facilitate the rehabilitation of
offenders: transferring a prisoner without his consent would be
counter-productive in terms of rehabilitation.

This provision is to be read in
conjunction with Article 7 which contains rules on the way in which consent
is to be given and on the possibility for the administering State to verify that
consent has been given in accordance with the conditions laid down in that
article.

Consent is to be given by the sentenced
persons legal representative in cases where one of the two States
considers it necessary in view of the age or of the physical or mental condition
of the sentenced person. The reference to the sentenced persons
"legal representative" is not meant to imply that the representative
must be legally qualified; it includes any person duly authorised by law to
represent the sentenced person, for example a parent or someone specially
authorised by the competent authority.

24. The fifth condition e is intended to ensure compliance with the principle of dual criminal
liability.

The condition is fulfilled if the act
which gave rise to the judgment in the sentencing State would have been
punishable if committed in the administering State and if the person who
performed the act could, under the law of the administering State, have had a
sanction imposed on him.

For the condition of dual criminal
liability to be fulfilled it is not necessary that the criminal offence be
precisely the same under both the law of the administering State and the law of
the sentencing State. There may be differences in the wording and legal
classification. The basic idea is that the essential constituent elements of the
offence should be comparable under the law of both States.

25. The sixth condition f confirms the conventions basic principle that a transfer
requires the agreement of the two States concerned.

26. Paragraph 3 is to be seen in
connection with Article 9 which grants the administering State a choice
between two enforcement procedures: it may either continue enforcement or
convert the sentence. If requested, it must inform the sentencing State as to
which of these two procedures it will follow (Article 9, paragraph 2). The
general rule is, therefore, that the administering State may choose between the
two enforcement procedures in each individual case.

If, however, a Contracting State wishes to
exclude, in a general way, the application of one of the two procedures, it can
do so under the provisions of paragraph 3: by way of a declaration, it may
indicate that it intends to exclude the application of either the
"continued enforcement procedure" or the "conversion
procedure" in its relations with other Contracting States. As the
declaration made under paragraph 3 applies to the "relations with other
parties" it enables the State making such a declaration to exclude one of
the two enforcement procedures not only where it is in the position of the
administering State but also where it is the sentencing State; in the latter
case the declaration would have the effect of making that States
agreement to a requested transfer dependent on the administering State not
applying the excluded procedure.

Article 4  Obligation to furnish information

27. Article 4 concerns the
transmission of various elements of information to be furnished during the
course of the transfer proceedings to the sentenced person, the administering
State, and the sentencing State. The provision applies to three different phases
of the procedure: paragraph 1 concerns information by the sentencing State to
the sentenced person on the substance of the convention; paragraphs 2 to 4 refer
to information between the two States concerned after the sentenced person has
expressed an interest in being transferred; paragraph 5 concerns information to
be given to the sentenced person on the action or decision taken with regard to
a possible transfer.

28. According to paragraph 1, any
sentenced person who may be eligible for transfer under the convention shall be
informed, by the sentencing State, of the conventions substance. This is
to make the sentenced person aware of the possibilities for transfer offered by
the convention and the legal consequences which a transfer to his home country
would have. The information will enable him to decide whether he wishes to
express an interest in being transferred. It is to be noted, however, that the
sentenced person cannot himself make the formal request for transfer; it follows
from Article 2.3 that transfer may be requested only by the sentencing or
the administering State.

The information to be given to the sentenced person must be in a language he understands.

29. Paragraphs 2 and 3 apply where the
sentenced person has expressed an interest to the sentencing State in being
transferred under the convention. In that event, the sentencing State informs
the State of which the sentenced person is a national that he has expressed an
interest in being transferred. This information has to be provided as soon as
practicable after the judgment becomes final and enforceable, and it must
include the elements enumerated in paragraph 3.

30. The principal purpose of conveying
this information to the authorities (including the consular authorities) of the
persons home country is to enable that State to decide whether it wants
to request a transfer, the assumption being that normally the sentenced
persons home country will take the initiative to have its own national
repatriated.

31. If the sentenced person has expressed
his interest in a transfer not to the sentencing State, but to the State of
which he is a national, paragraph 4 applies: in that case, the sentencing State
provides the information referred to in paragraph 3 only upon the express
request of the State of which the person is a national.

32. By virtue of paragraph 5, the
sentenced person who has expressed an interest in being transferred must be kept
informed, in writing, of the follow-up action taken in his case. He must, for
instance, be told whether the information referred to in paragraph 3 has been
sent to his home country, whether a request for transfer has been made and by
which State, and whether a decision has been taken on the request.

Article 5  Requests and replies

33. This article specifies the form and
the channels of transmission to be used for requests for transfer and replies
thereto.

34. Requests and replies must be made in
writing (paragraph 1). They must, in principle, be transmitted between the
respective Ministries of Justice (paragraph 2), but Contracting States may
declare that they will use other ways of transmission as, for instance, the
diplomatic channel (paragraph 3).

35. In line with the conventions
aim to provide a procedure for the speedy transfer of sentenced persons,
paragraph 4 requires the requested State promptly to inform the requesting State
whether it agrees to the requested transfer.

Article 6  Supporting documents

36. Article 6 States which supporting
documents must be provided, on request, by the administering State to the
sentencing State (paragraph 1), and by the sentencing State to the administering
State (paragraph 2). These documents must be provided before the transfer is
effected. As regards the documents to be provided by the sentencing State, they
may be sent to the administering State either together with the request for
transfer or afterwards; they need not be sent if either State has already
indicated that it will not agree to the transfer.

37. In addition, paragraph 3 provides that
either of the two States may request any of the documents or statements referred
to in paragraph 1 or 2 before making a request for transfer or taking a decision
on whether or not to agree to the requested transfer. This provision is intended
to avoid setting the transfer procedure in motion when there are doubts as to
whether all the conditions for transfer are satisfied. The sentencing State may,
for instance, wish to ascertain beforehand  that is before making a
request for transfer or before agreeing to a requested transfer  whether
the sentenced person is a national of the administering State, or the administering State may wish to ascertain
beforehand that the sentenced person consented to his transfer.

Article 7  Consent and its verification

38. The sentenced persons consent
to his transfer is one of the basic elements of the transfer mechanism
established by the convention. It was therefore deemed necessary to impose an
obligation on the sentencing State to ensure that the consent is given
voluntarily and with full knowledge of the legal consequences which the transfer
would entail for the person concerned, and to give the administering State an
opportunity to verify that consent has been given in accordance with these
conditions.

39. Under paragraph 2, the administering
State is entitled to that verification either through a Consul or through
another official on which the two States agree.

40. As the convention is based on the
principle that enforcement in the administering State requires the sentenced
persons prior consent, it was not considered necessary to lay down a rule
of speciality to the effect that the person transferred under the convention
with a view to the enforcement of a sentence may not be proceeded against or
sentenced or detained for an offence other than that relating to the enforcement
for which the transfer has been effected. Other conventions which provide for
this rule of speciality, as, for instance, the European Convention on
Extradition in its Article 14 or the European Convention on the
International Validity of Criminal Judgments in its Article 9, do not
require the consent of the person concerned, so that in those cases the rule of
speciality is a necessary safeguard for him.

The absence of a speciality rule should be
included in the information on the substance of the convention which is to be
given to sentenced persons under Article 4.1.

Article 8  Effects of transfer for sentencing State

41. This article safeguards the
application of the principle of ne bis in idem in
respect of the enforcement of the sentence after a transfer has been
effected.

42. To avoid the sentenced persons
serving a sentence for the same acts or omissions more than once, Article 8
provides that enforcement in the sentencing State is suspended at the moment
when the authoities of the administering State take the sentenced person into
charge (paragraph 1), and that the sentencing State may no longer enforce
the sentence once the administering State considers enforcement to have been
completed (paragraph 2).

Article 9  Effect of transfer for administering State

43. This article concerns the enforcement
of the sentence in the administering State. It states the general principles
which govern enforcement; the details of the different enforcement procedures
are regulated in Articles 10 and 11.

44. According to paragraph 1, the
administering State may choose between two ways of enforcing the sentence: it
may either continue the enforcement immediately or through a court or
administrative order (Article 10), or convert the sentence, through a
judicial or administrative procedure, into a decision which substitutes a
sanction prescribed by its own law for the sanction imposed in the sentencing
State (Article 11). It is to be noted, however, that in accordance with
Article 3.3, Contracting States have the possibility to exclude, in a
general way, the application of one of these two procedures.

45. If requested, the administering State
must inform the sentencing State as to which of these two procedures it intends
to apply (paragraph 2). This obligation has been imposed on the administering
State because the information may have a bearing on the sentencing States
decision on whether or not to agree to a requested transfer.

46. The basic difference between the
"continued enforcement" procedure under Article 10 and the
"conversion of sentence" procedure under Article 11 
commonly called "exequatur"  is that, in the first case, the
administering State continues to enforce the sanction imposed in the sentencing
State (possibly adapted by virtue of Article 10, paragraph 2), whereas, in
the second case, the sanction is converted into a sanction of the administering
State, with the result that the sentence enforced is no longer directly based on
the sanction imposed in the sentencing State.

47. In both cases, enforcement is governed
by the law of the administering State (paragraph 3). The reference to the law of
the administering State is to be interpreted in a wide sense; it includes, for
instance, the rules relating to eligibility for conditional release. To make
this clear, paragraph 3 states that the administering State alone shall be
competent to take all appropriate decisions.

48. Paragraph 4 refers to cases where
neither of the two procedures can be applied in the administering State because
the enforcement concerns measures imposed on a
person who for reasons of mental condition has been held not criminally
responsible for the commission of the offence. The provision allows the
administering State, if it is prepared to receive such a person for further
treatment, to indicate, by way of a declaration addressed to the Secretary
General of the Council of Europe, the procedures which it will follow in such
cases.

Article 10  Continued enforcement

49. Where the administering State opts for
the "continued enforcement" procedure, it is bound by the legal nature
as well as the duration of the sentence as determined by the sentencing State
(paragraph 1): the first condition ("legal nature") refers to the kind
of penalty imposed where the law of the sentencing State provides for a
diversity of penalties involving deprivation of liberty, such as penal
servitude, imprisonment or detention. The second condition
("duration") means that the sentence to be served in the administering
State, subject to any later decision of that State on, for example, conditional
release or remission, corresponds to the amount of the original sentence, taking
into account the time served and any remission earned in the sentencing State up
to the date of transfer.

50. If the two States concerned have
different penal systems with regard to the division of penalties or the minimum
and maximum lengths of sentence, it might be necessary for the administering
State to adapt the sanction to the punishment or measure prescribed by its own
law for a similar offence. Paragraph 2 allows that adaptation within certain
limits: the adapted punishment or measure must, as far as possible, correspond
with that imposed by the sentence to be enforced; it must not aggravate, by its
nature or duration, the sanction imposed in the sentencing State; and it must
not exceed the maximum prescribed by the law of the administering State. In
other words: the administering State may adapt the sanction to the nearest
equivalent available under its own law, provided that this does not result in
more severe punishment or longer detention. As opposed to the conversion
procedure under Article 11, under which the administering State substitutes a sanction for that imposed in the
sentencing State, the procedure under Article 10.2 enables the
administering State merely to adapt the sanction to
an equivalent sanction prescribed by its own law in order to make the sentence
enforceable. The administering State thus continues to enforce the sentence
imposed in the sentencing State, but it does so in accordance with the
requirements of its own penal system.

Article 11  Conversion of sentence

51. Article 11 concerns the
conversion of the sentence to be enforced, that is the judicial or
administrative procedure by which a sanction prescribed by the law of the
administering State is substituted for the sanction imposed in the sentencing
State, a procedure which is commonly called "exequatur". The provision
should be read in conjunction with Article 9.1. b. It is essential for the smooth and efficient functioning of the
convention in cases where, with regard to the classification of penalties or the
length of the custodial sentence applicable for similar offence, the penal
system of the administering State differs from that of the sentencing State.

52. The article does not regulate the
procedure to be followed. According to paragraph 1, the conversion of the
sentence is governed by the law of the administering State.

53. However, as regards the extent of the
conversion and the criteria applicable to it, paragraph 1 states four conditions
to be observed by the competent authority of the administering State.

54. Firstly, the authority is bound by the
findings as to the facts insofar as they appear  explicitly or implicitly
 from the judgment pronounced in the sentencing State a. It has,
therefore, no freedom to evaluate differently the facts on which the judgment is
based; this applies to "objective" facts relating to the commission of
the act and its results, as well as to "subjective" facts relating,
for instance, to premeditation and intent on the part of the convicted person.
The reason for this condition is that the substitution by a sanction of a
different nature or duration does not imply any modification of the judgment; it
merely serves to obtain an enforceable sentence in the administering State.

55. Secondly, a sanction involving
deprivation of liberty may not be converted into a pecuniary sanction b. This provision reflects the fact that the Convention
applies only to the transfer of sentenced persons, "sentence" being
defined in Article 1. a as a punishment or
measure involving deprivation of liberty. However, it does not prevent
conversion to a non-custodial sanction other than a pecuniary one.

56. Thirdly, any period of deprivation of
liberty already served by the sentenced person must be deducted from the
sentence as converted by the administering State c.
This provision applies to any part of the sentence already served in the
sentencing State as well as any provisional detention served during remand in
custody prior to conviction, or any detention served during transit.

57. Fourthly, the penal position of the
sentenced person must not be aggravated d. This
prohibition refers not only to the length of the sentence, which must not exceed
that imposed in the sentencing State, but also to the kind of sanction to be
enforced: it must not be harsher than that imposed in the sentencing State. If,
for instance, under the law of the administering State the offence carries a
more severe form of deprivation of liberty than that which the judgment imposed
(e.g. penal servitude or forced labour instead of imprisonment), the
administering State is precluded from enforcing this harsher kind of sanction.
In addition, paragraph 1. d provides, in respect of
the length of the sentence to be enforced, that the authority which converts
that sentence is not bound by any minimum which its own law may provide for the
same offence, that is, that it is allowed not to respect that minimum with the
result that it can enforce the sanction imposed in the sentencing State even if
it is less than the minimum laid down in its own law.

58. As the conversion procedure may take
some time, paragraph 2 requires the administering State, if the procedure takes
place after the transfer of the sentenced person, to keep that person in custody
or otherwise ensure his presence in the administering State, pending the outcome
of that procedure.

Article 12  Pardon, amnesty, commutation

59. Whereas Article 9.3 makes the
administering State solely responsible for the enforcement of the sentence,
including any decisions related to it (e.g. the decision to suspend the
sentence), pardon, amnesty or commutation of the sentence may be granted by
either the sentencing or the administering State, in accordance with its
Constitution or other laws.

Article 13  Review of judgment

60. This article provides that the
sentencing State alone has the right to take decisions on applications for
review of the judgment. The exclusive competence of the sentencing State to
review the judgment is justified by the fact that, technically speaking, review
proceedings are not part of enforcement so that Article 9.3 does not apply.
The object of an application for review is to obtain the re-examination of the
final sentence in the light of any new elements of fact. As the sentencing State
alone is competent to re-examine the materiality of facts, it
follows necessarily that only that State has jurisdiction to examine such an application, especially as it is better
placed to obtain new evidence on the point at issue.

61. The term "review" within the
meaning of Article 13 covers also proceedings which in some States may
result in a new examination of the legal aspects of the case, after the judgment
has become final.

62. The sentencing States
competence to decide on any application for review should not be interpreted as
discharging the administering State from the duty to enable the sentenced person
to seek a review of the judgment. Both States must, in fact, take all
appropriate steps to guarantee the effective exercise of the sentenced
persons right to apply for a review.

Article 14  Termination of enforcement

63. Article 14 concerns the
termination of enforcement by the administering State in cases where the
sentence ceases to be enforceable as a result of any decision or measure taken
by the sentencing State (e.g. the decisions referred to in Articles 12 and
13). In such cases, the administering State must terminate enforcement as soon
as it is informed by the sentencing State of any such decision or measure.

Article 15  Information on enforcement

64. This article provides for the
administering State to inform the sentencing State on the state of enforcement: a when it considers enforcement of the sentence to
have been completed (e.g. sentence served, remission, conditional release,
pardon, amnesty, commutation); b if the sentenced
person has escaped from custody before completion of the sentence; and c whenever the sentencing State requests a special
report.

65. It is to be noted that the information
to be supplied by virtue of Article 15. a may
be provided either for each individual case or by means of periodical 
for example annual  reports covering, for a given period, all cases in
which completion of sentence has occurred.

Article 16  Transit

66. This article has been drafted on the
lines of Article 21 of the European Convention on Extradition and
Article 13 of the European Convention on the International Validity of
Criminal Judgments. It lays down rules governing the transit of persons passing
from the sentencing State to the
administering State through the territory of another Contracting State.

67. Paragraph 1 imposes an obligation on
Contracting States to grant requests for transit, in accordance with their
national law, but this obligation is subject to a double condition: the request
for transit must be made by another Contracting State, and that State must have
agreed with another Contracting State or with a third State to the transfer of
the sentenced person. The latter condition means that the obligation to grant
transit becomes effective only when the sentencing and the administering State
have agreed on the transfer of the sentenced person.

68. It is to be noted that the obligation
to grant transit applies only where the request emanates from a Contracting
State. If it is made by a third State, paragraph 4 applies. It contains an
option, not an obligation: a request for transit may
be granted if the requesting third State has agreed with another Contracting
State to the transfer of the sentenced person.

69. Paragraph 1 does not exclude the
transit of a national of the State of transit, but paragraph 2. a entitles a
Contracting State to refuse transit if the person concerned is one of its own
nationals. This applies also where transit is to be effected by air and the
State concerned has made the declaration under paragraph 7.

Paragraph 2. b
entitles a Contracting State to refuse to grant transit if the offence for which
the sentence was imposed is not an offence under its own law.

70. As regards the channels of
communication for requests for transit and replies, paragraph 3 makes the
provisions of Article 5, paragraphs 2 and 3, applicable: in principle,
requests and replies must pass through the Ministries of Justice of the two
States concerned, but Contracting States may declare that they will use other
ways of transmission.

71. Paragraph 5 provides for the State of
transit to hold the sentenced person in custody only for such time as transit
through its territory requires.

72. Paragraph 6 concerns the sentenced
persons immunity from arrest and prosecution in the State of transit. It
provides that the State requested to grant transit may be asked to give an
assurance to the effect that the sentenced person will enjoy immunity in respect
of any offence committed or sentence imposed prior
to his departure from the territory of the sentencing State, with the exception
of custody which the transit State may impose in application of paragraph 5.
There is, however, no obligation on the State of transit to give such an
assurance.

73. Paragraph 7 deals with transit by air
where no landing in the territory of the State of transit is scheduled. In such
cases, no request for transit is required. Contrary to the provisions of
Article 21.4. a of the European Convention on
Extradition which require notification of the transit State in such cases,
paragraph 6 of Article 16 leaves it to each Contracting State to decide, by
means of a declaration, whether it wishes to require such notification.

Article 17  Languages and costs

74. This article deals with the questions of language (paragraphs 1 to 3), certification (paragraph 4), and costs
(paragraph 5).

75. With regard to the languages to be
used for the purposes of applying the Convention, Article 17 distinguishes
between the information exchanged between the two States concerned in accordance
with Article 4, paragraphs 2 to 4, which must be furnished in the language
of the recipient State or in one of the official languages of the Council of
Europe (paragraph 1), and requests for transfer and supporting documents for
which it is stated that no translation is required (paragraph 2), unless the
State concerned has declared that it requires requests for transfer and
supporting documents to be accompanied by a translation (paragraph 3).

76. Paragraph 4 provides that with the
exception of the copy of the judgment imposing the sentence  referred to
in Article 6.2. a  supporting documents
transmitted in application of the convention need not be certified.

77. As concerns costs, paragraph 5
provides that they shall be borne by the administering State, with the exception
of those costs which are incurred exclusively in the territory of the sentencing
Sstate. By precluding Contracting States from claiming refund from each other of
any expenses incurred during the transfer procedure, the provision intends to
facilitate the practical application of the Convention.

The administering State, however, is not
prevented from seeking to recover all or part of the cost of transfer from the
sentenced person.

Articles 18 to 25  Final
clauses

78. With the exception of Articles 18
and 19, the provisions contained in Articles 18 to 25 are, for the most
part, based on the "Model final clauses for conventions and agreements
concluded within the Council of Europe" which were approved by the
Committee of Ministers of the Council of Europe at the 315th meeting of their
Deputies in February 1980. Most of these articles do not therefore call for
specific comments, but the following points, relating to
Articles 18,19,21,22 and 23, require some explanation.

79. Articles 18 and 19 have been
drafted on the precedent established in Articles 19 and 20 of the
Convention on the Conservation of European Wildlife and Natural Habitats of 19
September 1979 which allow for signature, before the Conventions entry
into force, not only by the member States of the Council of Europe, but also by
non-member States which have participated in the elaboration of the Convention.
These provisions are intended to enable the maximum number of interested States,
not necessarily members of the Council of Europe, to become Contracting Parties
as soon as possible. As similar considerations apply in the case of the
convention on the Transfer of Sentenced Persons, Article 18 provides that
it is open for signature by the member States of the Council of Europe as well
as by non-member States which have participated in its elaboration. The
provision is intended to apply to two non-member States, Canada and the United
States of America, which were represented on the Select Committee by observers
and actively associated with the elaboration of the Convention. They may sign
the Convention, just as the member States of the Council of Europe, before its
entry into force. According to Article 18.2, the Convention enters into
force when three member States have expressed their consent to be bound by it.
Non-member States other than those referred to in Article 18.1 may, by
virtue of Article 19, be invited by the Committee of Ministers to accede to
the Convention, but only after its entry into force and after consultation of
the Contracting States.

80. Article 21 ensures the
conventions full temporal application. It enables Contracting States to
avail themselves of the transfer mechanism with regard to any enforcement which
falls within the conventions scope of application and which is to be
effected after its entry into force, regardless of whether the sentence to be
enforced has been imposed before or after that date.

81. Article 22 intends to ensure the
smooth co-existence of the convention with other treaties  multilateral
or bilateral  providing for the transfer of detained persons.

Paragraph 1 concerns extradition treaties
and other treaties providing for the transfer of detained persons for purposes
of confrontation or testimony. Paragraph 2 safeguards the continued application
of agreements, treaties or relations relating to the transfer of sentenced
persons, including uniform legislation as it exists, for instance, within the
Nordic co-operation. Paragraph 3 concerns complementary agreements concluded in
application of Article 64.2 of the European Convention on the International
Validity of Criminal Judgments. Paragraph 4 applies where a request for transfer
falls within the scope of both the present convention and the European
Convention on the International Validity of Criminal Judgments or any other
instrument on the transfer of sentenced persons. In such a case, the requesting
State must indicate on the basis of which instrument it makes the request. Such
indication is binding on the requested State.

82. Article 23 which makes the
European Committee on Crime Problems of the Council of Europe the guardian over
the application of the convention follows the precedents established in other
European conventions in the penal field, namely in Article 28 of the
European Convention on the Punishment of Road Traffic Offences, in
Article 65 of the European Convention on the International Validity of
Criminal Judgments, in Article 44 of the European Convention on the
Transfer of Proceedings in Criminal Matters, in Article 7 of the Additional
Protocol to the European Convention on Extradition, in Article 10 of the
Second Additional Protocol to the European Convention on Extradition, in
Article 10 of the Additional Protocol to the European Convention on Mutual
Assistance in Criminal Matters, and in Article 9 of the European Convention
on the Suppression of Terrorism. The reporting requirement which Article 23
lays down is intended to keep the European Committee on Crime Problems informed
about possible difficulties in interpreting and applying the convention so that
it may contribute to facilitating friendly settlements and proposing amendments
to the convention which might prove necessary.